Children’s Guardian v CXZ

1. [1]

   HIS HONOUR: On 1 October 2014, the defendant (“CXZ”) applied for a working with children check clearance pursuant to s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The defendant made the application for the purposes of supporting his youngest child’s sporting activities and in order to provide an opportunity for working as a security officer in hospitals.

2. [2]

   The pseudonym used for the defendant resulted from an order made by the Court under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground found in s 8(1)(e) of that Act.

3. [3]

   By s 8 of the Act, it is an offence for a person to work in child-related employment unless he or she has a “clearance” or has a pending application for one and is not subject to an “interim bar”.

4. [4]

   Once an application is made the provisions of Div 3 of Pt 3 of the Act were applicable, relevantly, ss 14 and 15(1)-(3) provide as follows:

5. [5]

   When CXZ applied for a “clearance”, the Children’s Guardian erroneously determined that it was required to conduct a risk assessment pursuant to s 14 of the Act because Sch 1 of the Act applied to CXZ as proceedings had been commenced against him for an offence of murder of an adult in 1996. However, as at 1 October 2014, Sch 1 of the Act did not apply to CXZ as the offence was not listed in Sch 1.

6. [6]

   Murder was, at that time, a disqualifying offence in cl (1)(a) of Sch 2. However, CXZ was acquitted of that charge in 1997.

7. [7]

   While CXZ did not dispute that the Children’s Guardian had discretionary powers in s 15 of the Act to conduct a risk assessment of CXZ, he contended the relevance of the fact that CXZ was not subject to those assessment requirements arose in two ways, the first of which remains relevant. It was contended there was no onus on CXZ in the Civil and Administrative Tribunal of NSW (“the Tribunal”) to demonstrate that he posed a risk to children as he proceeded as a person who had been refused a clearance within the meaning of s 27(1) of the Act. Section 28(7) of the Act was not applicable to him (it was common ground that the matter proceeded before the Tribunal under s 27 of the Act).

8. [8]

   On 2 December 2016, the Children’s Guardian by Director, Mr David Reeves refused to grant a working with children check clearance pursuant to s 20(1) of the Act. That decision was made appropriately pursuant to s 18(2) of the Act.

9. [9]

   Section 18 of the Act provides as follows:

10. [10]

    The Children’s Guardian gave reasons as required by s 20(3) of the Act.

11. [11]

    By s 27(1) of the Act, if an application for a clearance is refused then the applicant may apply to the Tribunal (“the Tribunal”) for an administrative review of the decision. By s 63 of the Administrative Decisions Act 1997 (NSW) (“ADR Act”), the Tribunal is to, inter alia, “decide what the correct and preferable decision is having regard to the material then before it”.

12. [12]

    The defendant made such an application on 3 January 2017. By a decision given by S Leal, Senior Member and R Royer, General Member, of the Administrative and Equal Opportunity Division of the Tribunal dated 4 February 2018, the Tribunal ordered that the decision of the Children’s Guardian of 2 December 2016 be set aside and in lieu thereof that CXZ be granted a working with children check clearance: CXZ v Children’s Guardian [2018] NSWCATAD 36 (“CXZ No 1”).

13. [13]

    Clause 17(1)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) provides that a decision made by the Tribunal for the purposes of the Act is subject to appeal to this Court “on a question of law”.

14. [14]

    Such an appeal must be predicated upon “an identified question of law” or “an erroneous answer in respect of a question of law”: see B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [2], [75] (per Allsop P) and [150] (per Basten JA).

15. [15]

    Reference may be made to the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 (“BKE”) at [35] as follows:

THE APPEAL

1. [16]

   By a summons commencing an appeal filed 14 March 2018, the Children’s Guardian brought an appeal from the decision of the Tribunal in CXZ No 1. Orders were sought setting aside that decision and remitting the proceedings to the Tribunal to be determined in accordance with law.

Grounds of Appeal

1. [17]

   There were two grounds of appeal. The primary ground of appeal was stated as follows:

2. [18]

   The second and alternative ground of appeal was in the following terms:

The Notice of Contention

1. [19]

   The defendant filed a Notice of Contention on 4 October 2018 (“the Contention”). No issue was taken as to the time of the filing of the Contention.

2. [20]

   The details of the Contention were in the following terms:

3. [21]

   The grounds for the Contention were as follows:

THE LEGISLATIVE SCHEME

1. [22]

   The Act, as its short title suggests, is protective legislation. It is calculated to protect children from the risk of harm that may be posed by a person working with them.

Object

1. [23]

   Section 3 specifies the objects of the Act as follows:

Paramount Consideration

1. [24]

   Section 4 provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse” is the paramount consideration in the operation of the Act.

Part 3 – Working with Children Check Clearances

1. [25]

   Part 3 of the Act concerns the grant or refusal of clearances.

2. [26]

   Division 3 of Pt 3 concerns the risk assessment of applicants for clearance. Section 15(3) specifies the matters the Children’s Guardian may consider in undertaking a risk assessment. It raises similar considerations to those found in s 30.

3. [27]

   Division 4 of Pt 3 concerns application for clearances and incorporates the aforementioned s 18.

4. [28]

   The meaning of “risk” has been considered in many contexts. Relevantly, in Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949 (“V”), in the context of considering the previous regime under the Child Protection (Prohibited Employment) Act 1998 (NSW), Young CJ in Eq held (at [42]):

5. [29]

   Although the Act has since been amended to provide a definition of “risk” that is similar to what Young CJ in Eq said in V (see s 5B), at the time of the Tribunal’s decision in this case the Act did not define “risk” and V was authority as to its meaning.

Part 4 – Reviews and Appeals

1. [30]

   Part 4 deals with reviews and appeals.

2. [31]

   Section 27(1) enables an application for review by persons who have had an application for children check clearance refused.

3. [32]

   Section 28 concerns disqualified and ineligible persons. The presumption in s 28(7) is not applicable in this matter.

4. [33]

   Section 30 applies to the review under s 27. That provision is in the following terms:

THE TRIBUNAL’S DECISION

1. [34]

   At the outset, the Tribunal referred to a risk assessment undertaken by the Children’s Guardian as follows (CXZ No 1 at [2]):

2. [35]

   The Tribunal returned to the issue of that charge under the heading “Acquittals for CXZ” with respect to “1996 charges” later in its reasons for decision.

3. [36]

   The Tribunal next discussed “Legal Principles” which included the following discussion (at [12]-[14]):

4. [37]

   The Tribunal then posed the issues which it considered were raised in the proceedings as follows (CXZ No 1 at [18]):

5. [38]

   The Children’s Guardian accepted this general statement of issues was correct.

6. [39]

   There was then given a description of evidence before the Tribunal in the following terms (at [19]):

7. [40]

   As the Children’s Guardian pointed out, there was no objection by either party as to the receipt of this material. Nor was there a request for persons for whom statements of evidence had been adduced, to attend proceedings for cross-examination.

8. [41]

   The Tribunal nextly turned to the criminal record for CXZ, which was set out under two subheadings: “1995 offences” and “No conviction recorded”. The Tribunal described both matters as being over 20 years old and not involving children. It was on that basis the Tribunal gave them “little weight” in “assessing the applicant’s current risk to children”.

9. [42]

   The Tribunal then addressed what were described as “1996 charges” and “2009 charges” under the heading “Acquittals for CXZ”. As to the former of those topics the Tribunal stated (at [26]-[28]):

10. [43]

    The Tribunal then considered CXZ’s “history in security work”.

11. [44]

    Under the heading, “CXZ’s family history and domestic disputes”, the Tribunal traversed a number of considerations which attracted significant attention in submissions on this appeal. The Tribunal considered the broad issues raised by this heading under a number of subheadings or sections, which are set out below:

    1. (1)

       CXZ’s relationship with his two wives (untitled);

    2. (2)

       “Apprehended Violence Orders” (“AVOs”);

    3. (3)

       “Family and Community Services material”;

    4. (4)

       “Family law documents”;

    5. (5)

       “2005 incident with daughter”;

    6. (6)

       “2008 report of son running away”;

    7. (7)

       “Narrative” (of CXZ’s early life); and

    8. (8)

       “[CXZ] and relationship with siblings”.

12. [45]

    The findings in the first, second and fourth sections attracted significant attention and will be set out seriatim.

13. [46]

    By the first section, CXZ’s relationship with his two wives, the Tribunal gave consideration to evidence as to CXZ’s two wives and acts of violence in that respect. The Tribunal’s findings were as follows (at [41]-[49]):

14. [47]

    Under the second section, the Tribunal dealt with two AVOs concerning CXZ (namely, the “1995 AVO” and the “2000 AVO”), as well as several entries recorded on the Computerised Operational Policing System database (described by the Tribunal as “COPS event records”) (CXZ No 1 at [50]-[55]). Those considerations are extracted below::

15. [48]

    Mention should also be made of the third section of the Tribunal’s consideration of CXZ’s family history and domestic disputes, namely, “Family and Community Services material”. The Tribunal attached little weight to notifications to Family and Community Services. The Tribunal stated (CXZ No 1 at [56]-[57]):

16. [49]

    The fourth section concerned family law documents. It involved an extensive discussion in which attention was primarily directed to the consideration of two affidavits: the 2006 affidavit of CXZ’s sister-in-law and the 2004 affidavit of CXZ’s former partner. The following is an extract from that section of the decision (at [58]-[65]):

17. [50]

    The Tribunal continued to set out evidence in relation to family violence as follows (CXZ No 1 at [73]-[77]):

18. [51]

    After referring to references for CXZ, the Tribunal dealt with psychiatric reports and discussed CXZ’s evidence in the proceedings.

19. [52]

    Given the reliance placed by CXZ upon the psychiatric reports, it is appropriate to refer to some aspects of the Tribunal’s reasoning in that respect.

20. [53]

    Two psychiatrists prepared reports for the proceedings before the Tribunal, as follows:

    1. (1)

       An initial and supplementary risk assessment report was prepared by Dr Matthew Jones, a psychiatrist engaged by the applicant.

    2. (2)

       An initial and supplementary risk assessment report was prepared by Dr Stephen Allnutt, a psychiatrist engaged by the Children’s Guardian.

21. [54]

    The expertise of Drs Jones and Allnutt was not disputed by the parties.

22. [55]

    As to Dr Jones’ report, the Tribunal observed (CXZ No 1 at [95]-[96]):

23. [56]

    As to the opinion of Dr Allnutt, the Tribunal noted that “Dr Allnutt found the applicant to pose a low risk to the safety of children” (CXZ No 1 at [100]).

24. [57]

    The Tribunal then turned to CXZ’s evidence in the proceedings as follows (at [108]-[109]):

25. [58]

    In the concluding stages of the decision, the Tribunal considered the factors set out in s 30(1) of the Act, addressing each factor seriatim.

26. [59]

    The defendant placed particular reliance on the Tribunal’s findings with respect to s 30(1)(b): “the period of time since those offences or matters occurred and the conduct of the person since they occurred”. The Tribunal’s findings in this respect were (at [115]-[124]):

27. [60]

    The Tribunal also referred to the information given by CXZ in, or in relation to, the application, pursuant to s 30(1)(j),as follows (at [139]-[141]):

28. [61]

    In the Tribunal’s conclusion as to s 30(1) factors, it expressed the view that CXZ did not “pose a real and appreciable risk to children” (CXZ No 1 at [143]). The reasons for that conclusion are extracted in full below (at [144]-[153]):

Ground 1

1. [62]

   The Children’s Guardian contended the principal ground of appeal was that the Tribunal had erred in failing to apply M v M (1988) 166 CLR 69; [1988] HCA 68 (“M v M”) as it was required (in a decision given under s 27 of the Act) by the authority in Children’s Guardian v CFW [2016] NSWSC 1406 (“CFW”). In a refinement during oral submissions, the Children’s Guardian contended that, in substance, the Tribunal failed to apply s 18(2) of the Act by omitting to assess risk in accordance with those judgments (CXZ did not object to this refinement to the ground). It was also contended that a further question of law raised by this ground was whether or not the Tribunal had failed to discharge its duty to hear and dispose of the case presented by a party before it.

2. [63]

   The starting point for the submissions of the Children's Guardian was that the approach adopted in the High Court in M v M was applicable to proceedings in the Tribunal for review of a refusal of a clearance.

3. [64]

   The foundation for that contention was the decisions of this Court in BKE at [33] (per Beech-Jones J) and CFW at [13] (per Harrison J).

4. [65]

   It was upon that foundation, the Children’s Guardian contended that it was well established that a three step approach to assessing risk under the Act had been endorsed in the High Court in M v M, which was described in the submissions of the Children’s Guardian as set out below.

5. [66]

   As to the first and second steps, in light of that authority, the Children’s Guardian submitted:

6. [67]

   As to the third step, it was submitted:

7. [68]

   In a written submission in reply, the Children’s Guardian disputed CXZ’s contention there was no authority for a three step process, submitting:

8. [69]

   As to the third step, the Children’s Guardian relied upon CFW at [16] and [17]. It was submitted that decision has been consistently approved. Reference was made to CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 (“CFJ”) at [72] (per Schmidt J).

9. [70]

   As to the observations of Davies J in Children’s Guardian v CKF [2017] NSWSC 893 (“CKF”) and the discussion, in that decision, of CFW, the following submissions were advanced:

10. [71]

    Further, it was submitted that Davies J accepted there was a three step process and the only point of departure was whether doubt “counts against the defendant or is…simply a matter to be considered”. It was accepted Davies J’s position was technically correct but it was difficult to conceive where an allegation of abuse may be favourable to an applicant.

11. [72]

    In reply, it was submitted that CXZ’s contention that CFW was wrong and inconsistent with BKE should be rejected. Reference was made to the observations of Beech-Jones J in BKE at [33]. It was submitted:

12. [73]

    As to CXZ’s contention that there was contrary authority to the “notion of ‘lingering doubt’ or ‘suspicion’” as a proper basis for fact finding and risk assessment in a review, the rejoinder by the Children’s Guardian (by reference to the authorities summarised below in CXZ’s submissions) was as follows:

13. [74]

    It was further submitted in reply:

14. [75]

    In CFW and CFJ, it was found that the Tribunal must assess the weight to be given to an allegation that was “neither proven to the usual standard nor rejected as groundless”. The Tribunal must first decide “what weight it will give and accumulate those matters and then decide what does that say about the statutory test”.

15. [76]

    The Children’s Guardian submitted that the Tribunal made no reference to M v M, CFW or BKE. It was accepted that such an omission was not alone sufficient to show the Tribunal did not apply the correct law but the omission was relevant in determining the appeal, particularly in the light of the fact that the Tribunal’s reasons referred only to the first of the three steps in the reasoning process. The Tribunal found that certain allegations were not proven on the balance of probabilities but the reasons for decision made no mention of the Tribunal’s having considered the second and third required steps with respect to five allegations raised by the Children’s Guardian (discussed further below).

16. [77]

    In reply to a contention by CXZ, it was submitted the Court should reject CXZ’s submission that there was no obligation to consider every single allegation made by the Children’s Guardian and determine whether it was groundless or not. The Tribunal was required to consider allegations that were “material” and “had not already been found proven on the balance of probabilities”. It was submitted:

17. [78]

    The Children’s Guardian contended that when the Tribunal had reached conclusions, such as “we cannot make any positive findings”, the Tribunal had made no positive finding against CXZ under the first step (contrary to the submission of the Children’s Guardian below) but then failed to consider, as it was required to do by law, whether or not the five allegations relied upon by the Children’s Guardian were groundless. This conclusion was to be inferred by the failure of the Tribunal’s reasons to contain any express statement or an implication that it proceeded to deal with those questions.

18. [79]

    It was accepted that the way the Tribunal expressed its conclusions, in this respect, was capable of two possible constructions. The first was that no affirmative finding was made that the allegations were groundless (resulting in a failure to consider the second step). The second option was the Tribunal made, in fact, no definitive finding which, in that respect, could encompass the first and second steps (in which case it could not be said the Tribunal failed to consider the issue of whether the allegations were groundless).

19. [80]

    It was conceded that the Tribunal may choose to address all issues “at once”. It was, however, unclear whether the Tribunal directed its mind to the second step issue and made a positive finding that the allegation was not groundless or simply failed to address the question. The ultimate submission of Children’s Guardian was that the Tribunal had failed to address whether the allegation was groundless and, therefore, failed to reach any conclusion that the allegations were groundless.

20. [81]

    The Children’s Guardian went further to contend that, insofar as the Tribunal’s reasons gave any insight into what the Tribunal would have found as to the allegations, it appeared that the Tribunal would not have found the allegations to be groundless.

21. [82]

    It was also contended, if the Tribunal did address the second step, in any event, it was clear that it failed to address the third step as to any “lingering suspicion”. That issue did not involve a singular allegation but five. It was necessary for the Tribunal to consider the “accumulated weight” of suspicions held as to each such allegation. The Children’s Guardian made the following further submissions in that respect:

22. [83]

    The five allegations relied upon by the Children’s Guardian (“the allegations”) and the corresponding references to CXZ No 1, will be addressed, in turn, in the order set out in the written submissions of the Children’s Guardian, namely:

    1. (1)

       The first allegation and [51] of CXZ No 1 (“allegation 1”);

    2. (2)

       The second allegation and [53] of CXZ No 1 (“allegation 2”);

    3. (3)

       The third allegation and [49] of CXZ No 1 (“allegation 3”);

    4. (4)

       The fourth allegation and [64] of CXZ No 1 (“allegation 4”); and

    5. (5)

       The fifth allegation and [65] of CXZ No 1 (“allegation 5”).

23. [84]

    The Children’s Guardian’s submissions, in that respect, are set out below together with supplementary submissions made in relation to the same.

24. [85]

    As to the allegation 1, the Children’s Guardian submitted:

25. [86]

    It was further submitted, the Tribunal had found that no finding was available on the balance of probabilities that the applicant made threats to his first wife and her then partner. The Children’s Guardian repeated its submission that the Tribunal had not found the allegation as groundless, although if it had turned its mind to that issue it appears the Tribunal would have found the allegations not to be groundless. However, the Tribunal did not take the third step and gave the allegation no weight.

26. [87]

    As to allegation 2, the Children’s Guardian contended:

27. [88]

    It was submitted that the Tribunal had “conceivably” taken the second step but had failed to take the third.

28. [89]

    As to allegation 3, the Children's Guardian submitted:

29. [90]

    It was submitted the Tribunal failed to take the second and third steps in this respect.

30. [91]

    As to allegation 4, it was submitted:

31. [92]

    The Children’s Guardian contended that the Tribunal failed to make a finding as to whether the allegation was groundless and/or gave the allegation no weight having regard to the third step.

32. [93]

    As to allegation 5, the Children’s Guardian submitted:

33. [94]

    The oral submissions for allegation 4 were repeated for this allegation.

34. [95]

    The Tribunal may have addressed, it was contended, the second and third steps in its concluding remarks (CXZ No 1 at [143]-[153]) but it failed to do so. The Children’s Guardian, in that respect, relied upon the following propositions:

    1. (1)

       There was nothing express in those remarks (for example, a reference to the tests) that showed that the Tribunal adverted in to the task described in M v M.

    2. (2)

       The remarks did not include a synthesis of the whole of the evidence. They merely recited some of the major items individually and assigned weight to them (not being the allegations in question).

    3. (3)

       The Tribunal came closest to dealing with the subject matter of the allegations at [147], where it said the following:

    4. (4)

       However, that passage did not overlap with the allegations and reinforced the conclusion that the five matters, having been found unproven on the balance of probabilities, were completely ignored.

35. [96]

    There is an absence of an overall synthesis by the Tribunal as to which of those conclusions are most important or attracted the greatest weight. As to [147] of the reasons for decision, that paragraph shows that the Tribunal accepted CXZ’s concession with respect to his first wife. Otherwise, in the paragraph, the Tribunal did not make a conclusion that CXZ was violent towards his second wife, but rather accepted CXZ’s evidence that the relationship involved violence. The passage does not demonstrate an engagement or overlap with the five allegations. There is no second and third step analysis per M v M, and CXZ No 1 does not reflect that the Tribunal undertook the correct test because, with respect to the allegations vis-à-vis the second wife, there is no discussion about whether the allegation is groundless or as to whether there is a lingering doubt.

36. [97]

    The Children’s Guardian accepted that “other passages” of the Tribunal’s reasons for decision must result in a conclusion that, had the Tribunal conducted an analysis in accordance with M v M, it “might” have given little weight to each of the allegations. However, it was submitted that the following must be taken into account in that respect:

    1. (1)

       It should not be concluded or assumed that the Tribunal would have assigned little weight to these five allegations. That several other parts of the Children’s Guardian’s case were “given little weight” does not mean that the allegations would have been assigned the same weight. For one thing, some of the allegations, unlike others, were supported by sworn testimony, a matter that the Tribunal might have taken into account when weighing them.

    2. (2)

       Any assumed inevitability that these matters would have received little weight does not mean that they would have received no weight. By all indications, the Tribunal would have given the allegations some weight (perhaps only little, but some nonetheless). That is significant because the task of the Tribunal was to “count” the various matters and to make an evaluation of their accumulated weight when assessing the risk posed by CXZ.

    3. (3)

       Furthermore, and contrary to the correct approach, it was submitted the Tribunal proceeded one by one through the many allegations against CXZ and dismissed each one as being of “little” or “limited” (or similar) weight. It never, expressly or implicitly, considered the accumulated weight of all the matters put before it.

37. [98]

    In that respect, the Children’s Guardian referred to particular aspects of the reasons for decision of the Tribunal to illustrate that, whilst there was a particular weighing of each allegation (other than the allegations), the Tribunal’s decision did “not speak in terms of what risk was indicated by all of these matters together”. The illustrations were as follows (with references as to CXZ No 1):

    1. (1)

       to “give…little weight” – but also “[w]e have given some weight” – to CXZ’s “lack of judgement” in a violent altercation outside a fast food restaurant (note that CXZ was acquitted of assault, on the ground of self-defence, but the Tribunal was satisfied of his lack of judgment) (CXZ No 1 at [31] and [150]);

    2. (2)

       to “give little weight” to several notifications to the Department of Family and Community Services (“FACS”) (note that the Tribunal had good reason to give the notifications negligible weight) (CXZ No 1 at [56]-[57]);

    3. (3)

       to “give limited weight” to the contents of an affidavit sworn by the CXZ’s sister in 2004, in which CXZ’s sister expressed concerns about his children residing with him (CXZ No 1 at [71]);

    4. (4)

       to “give limited weight” to an affidavit in which a relative of CXZ’ second wife described his “intimidatory behaviour” (CXZ No 1 at [78]);

    5. (5)

       to “give limited weight” to an incident in which CXZ had an altercation with his daughter and police were called (the Tribunal gave “some weight” to CXZ’s evidence that “she started to strike him” and “he grabbed her wrists to stop her” and “he didn’t push her down the stairs”. The Tribunal also accepted that their “relationship had been at times acrimonious but [did] not accept that [CXZ] was violent towards his daughter” (CXZ No 1 at [75] and [81]);

    6. (6)

       to “give… little weight” to a FACS report that CXZ’s “eldest son had contacted police as he was ‘scared of his father…’” (note that when police attended, the son said that he did not have any fears) (CXZ No 1 at [82]); and

    7. (7)

       to “give little weight” to allegations of childhood sexual misconduct by CXZ towards his siblings (the assaults occurred but were discounted as the product of a disturbed childhood) (CXZ No 1 at [86]).

38. [99]

    It was submitted the aforementioned errors deprived the Children’s Guardian of a real opportunity of securing a different result in the proceedings.

Ground 2

1. [100]

   The Children’s Guardian put the following short submissions as to inadequate reasons, as follows:

The Contention

1. [101]

   As earlier mentioned, by the contention, the defendant contended that the Tribunal should have admitted the 1995 and 2000 AVOs and two Family Court affidavits but only for the limited purpose that the allegations they contained had been made.

2. [102]

   The Children’s Guardian submitted that the contention should fail for the following reasons:

   1. (1)

      This issue was “not raised below”. Therefore, the Tribunal cannot be said to have erred by not accepting the (unmade) contention that the evidence should have been received on a limited basis.

   2. (2)

      There is no reason why the Tribunal should have received the evidence on only a limited basis. Unlike Commission for Children and Young Persons v FZ [2011] NSWCA 111 (“FZ”) and Children's Guardian v BRL [2016] NSWSC 1206 (“BRL”), this was not a case in which the 7 relevant witnesses were sought for cross-examination but not produced. There is no rule that the Tribunal should reject or discount the weight of the evidence of a witness who is not sought for cross-examination. Ordinarily, a failure to challenge or seek to challenge evidence may be taken as permitting the Tribunal to give the evidence more weight.

Remedy

1. [103]

   Finally, as to remedy, the Children’s Guardian contended that the appeal should be allowed, the Tribunal’s orders set aside and the matter remitted for determination by a Tribunal differently constituted: CLD v Children’s Guardian [2017] NSWSC 936 at [20].

Ground 1

1. [104]

   CXZ offered a rejoinder to the contentions by the Children’s Guardian that the principles in M v M were made applicable to review proceedings before the Tribunal in BKE and that, in the result, the appropriate approach, where the Children’s Guardian relies on allegations of wrongdoing by the applicant, is for the Tribunal to first decide whether or not the allegation is true and, if not, that it has no hesitation in rejecting it as groundless on a number of bases. Further, CXZ challenged the notion of a three stage process being applicable in the present matter. In particular, as a broad proposition CXZ denied there was any requirement for the Tribunal to make a finding as to any allegation raised by the Children’s Guardian that it was groundless.

2. [105]

   This submission was advanced in two parts.

3. [106]

   First, it was contended the circumstances under which BKE was decided differed from the present proceedings for two reasons:

   1. (1)

      As to the notion that BKE resulted in the importation of the principles in M v M, it is important to note, it was contended, that that case concerned an applicant who was under the presumption that he posed a risk to children (pursuant to s 28 of the Act). That presumption does not operate in the present matter.

   2. (2)

      In contrast to the present matter, in BKE there were allegations that the applicant sexually assaulted a child (at [29] and [30]). Most authorities relied upon by the Children’s Guardian concerned allegations of the sexual assault of a child. There is nothing in BKE that demonstrated M v M is of general application. Both M v M and BKE resolved on their own factual circumstances.

4. [107]

   Secondly, it was submitted that, whilst CXZ accepted that the Court in BKE considered that M v M gave “significant guidance” to the Tribunal in its fact finding and risk assessment function, there were differences (recognised in BKE) between family law and working with children jurisdictions.

5. [108]

   There are differences between the family law and working with children jurisdictions in terms of the definition of “risk” such as the capacity in the family law jurisdiction for the consideration of mitigating measures to protect children in assessing risk in family matters. Further, the purposes of jurisdictions are different. Beech-Jones J in BKE posited, it was contended, the following approach to fact finding and risk assessment under the Act (at [33]):

6. [109]

   The defendant contended that, in M v M, the Family Court did not make a positive or negative finding that the allegation of sexual abuse of a child occurred but found that, if there was an unacceptable risk that the child could be exposed to abuse, custody or access should be denied (referring to BKE at [32]).

7. [110]

   CXZ submitted that M v M stands for two principles:

   1. (1)

      The determination of whether a person poses a risk to children should not be subservient to a determination of whether an allegation did or did not occur (at 76). The same principle is applicable under the Act.

   2. (2)

      In considering an allegation, a Court or Tribunal should not make a positive finding as to the allegation unless it is satisfied to the civil standard of proof discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334.

8. [111]

   As to the particular aspects of the decision in M v M, CXZ contended:

   1. (1)

      The test considered by the High Court for family law proceedings – whether an order is in the interests of the welfare of the child (at 76) – is very similar to considerations arising under the Act. The “penultimate question is about… preventing risk to children and the welfare of children is the paramount consideration”.

   2. (2)

      M v M is only authority for the way risk is assessed where there is an allegation of sexual assault (at 76). The approach adopted by the High Court in assessing risk is demonstrative of the serious consequences of sexual abuse for a child. Such an allegation, it was submitted, was of a different character (to other allegations of violence) because of its seriousness and that distinction explained why the particular approach in M v M was taken in such cases. An expansion of the principles in M v M beyond those narrow parameters would require particular explanation. BKE is merely an example of a sexual assault case.

   3. (3)

      The High Court in M v M emphasised that the focus must be on “the evidence” (at 77).

9. [112]

   The Tribunal correctly did not refer to M v M or BKE, it was contended, because the matter did not involve an allegation of sexual assault against a child.

10. [113]

    From that foundation, CXZ drew a distinction between what he contended the authorities in M v M and BKE stood for and what they did not.

11. [114]

    It was submitted that the scope of M v M and BKE was as follows:

12. [115]

    To the contrary, it was submitted that M v M and BKE were not authority for various propositions described as follows:

13. [116]

    CXZ sought a finding that the decision in CFW was wrong and should not be followed insofar as it was found that the notion that a “lingering doubt or suspicion in the mind of the decision maker” can be the proper basis for a fact finding and risk assessment process under the Act. In support of that submission CXZ made two submissions as follows:

    1. (1)

       The decision in CFW, by focusing on surrounding circumstances and the conduct of the person, is contrary to the analysis by Beech-Jones J in BKE at [33]. The focus on the state of mind of the decision maker does not sit well with the admonitions in House v King (1936) 55 CLR 499; [1936] NSWSC 1406 and it lacks the forensic focus on analysis and evaluation.

    2. (2)

       A number of judges of this Court have not followed the notion of “lingering doubt” or “suspicion” as a proper basis for a fact finding and risk assessment process: CGB v Children’s Guardian [2018] NSWSC 776 at [54] (per Harrison AsJ); CKF at [56] (per Davies J); CFJ at [66] (per Schmidt J). In Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; [1980] FCA 85 at [15], Deane J observed that where a Tribunal is not bound by the rules of evidence, the Tribunal’s task in its fact finding functions is to act fairly, on the basis of relevant and probative evidence to seek “a comfortable level of satisfaction…commensurate with gravity of the charge”.

14. [117]

    The defendant contended that there was no obligation on the Tribunal to consider every single allegation made by the Children’s Guardian and determine whether it was groundless or not. M v M was not authority for the proposition that there was a three step approach to assessing risk in proceedings under the Act.

15. [118]

    It was contended that, consistently with BKE, s 30(1) obligated the Tribunal to consider the conduct of the person since the trigger charge occurred and to assess the likelihood of the repetition by the person of any of the conduct as part of its overall assessment of the risk he or she posed to children: BKE at [86] (per Beech-Jones J), and to “give weight” to each matter in s 30: BKE at [94] (per Beech-Jones J) in reliance on R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. In terms of the AVO relating to allegation 3, the AVO cannot attest to the truth of matters which it addresses. The Tribunal approached the question in that way: BVT v Office of Children’s Guardian [2016] NSWSC 1169 at [58] (per Adamson J).

16. [119]

    The defendant then made a submission as to the proper process for the Tribunal to make a finding as to the correct and preferable decision as follows:

17. [120]

    As to these principles, and having regard to the evidence put before the Tribunal, the following submission was made:

18. [121]

    In BRL at [49], it was found that the Tribunal was correct to reject the admission of witness statements which formed part of a prosecution case for the purpose of proving the truth of the assertions.

19. [122]

    The defendant also submitted that the decision in BRL follows the longstanding authority from the Court of Appeal's decision in FZ where the Court of Appeal found that a witness statement alleging sexual assault against the defendant was not admissible for the purpose of proving the truth of the assertions in circumstances where the person's evidence could not be tested by the Tribunal because the Children's Guardian did not ask the witness to attend the Tribunal for cross-examination.

20. [123]

    As to particular answers to the Children’s Guardian’s submissions, CXZ commenced with making a broad submission in the following terms.

21. [124]

    Before the Tribunal, CXZ made admissions that he was raised in a violent, neglectful and dysfunctional family which have had long term impacts on him including drug abuse and being violent towards other adults including his first and second wife. However, the undisputed evidence before the Tribunal was that CXZ was able to overcome these dysfunctions and form warm and loving relationships with his children: see CXZ No 1 at [73], [88], [97] and [119]. The independent expert Family Court reports, upon which the Tribunal relied, concluded that CXZ should be granted primary custody for his older children. For the last 15 years CXZ had primary custody of his older children and recently his youngest son: see CXZ No 1 at [139]. He has done so as a single parent. He had also been able to gain qualifications and build a career: see CXZ No 1 at [151].

22. [125]

    It was also submitted that the plaintiff’s psychiatrist, Dr Allnutt, gave evidence at the Tribunal that CXZ posed a low risk to the safety of children: see CXZ No 1 at [100].

23. [126]

    As to the particular submissions advanced by the plaintiff with respect to ground 1, the trigger offence was related to the murder of an adult. It was submitted:

24. [127]

    As to the allegations, CXZ contended that the difficulty faced was that the broad allegations made by the Children’s Guardian, namely, that CXZ was violent towards his first and second wife, were made in the following circumstances:

    1. (1)

       neither the first or second wife gave evidence;

    2. (2)

       neither the first or second wife was ever subject to cross-examination on any previous evidence given before a court or a tribunal;

    3. (3)

       third persons, such as experts and employees of FACS, had “on accession” made statements to the effect that the evidence of the first and second wife were unreliable (see see CXZ No 1 at [121]) or that they themselves were violent.

25. [128]

    Turning to allegations 1 and 2, with respect to CXZ’s relationship with his first wife, CXZ had admitted that sometime in the mid-1990s CXZ slapped his first wife across the face (see CXZ No 1 at [43], [49], [55], [76] and [147]).

26. [129]

    Notwithstanding that admission, the Tribunal, it was submitted, could not make a positive finding that CXZ was violent towards his first wife as there was:

    1. (1)

       no evidence from the complainant;

    2. (2)

       no evidence of the details of surrounding circumstances of the making of an AVO; and

    3. (3)

       the AVO was made by consent and without admissions (see CXZ No 1 at [50]-[51]).

27. [130]

    There was no adjudication upon the AVO.

28. [131]

    As to allegation 3, namely, that CXZ was violent towards his second wife, CXZ admitted that there was violence between them but denied the specific allegations made by her in her witness statement, which was prepared for the purpose of Family Court proceedings. There was evidence those same persons did not receive the complaints. It was noted that at [55], the Tribunal recognised there was some violence in the second marriage. The Tribunal found that on the balance of probabilities it could not be satisfied that CXZ was violent towards his second wife, in the manner alleged, but found that the children did witness violence between the parents (see CXZ No 1 at [49], [74], [77], [95], [119] and [147]).

29. [132]

    It was also submitted that, in determining whether CXZ posed a risk to children, whilst the Tribunal did not give any weight to the AVO made in 2000 (see CXZ No 1 at [116]), it did consider the statements from the 2002 and 2003 family law proceedings and the evidence given by CXZ.

30. [133]

    As to allegations 4 and 5, CXZ submitted that it was surprising the Children’s Guardian made submissions to the Tribunal that it should have relied on the witness statements made in 2004 and 2006 as to the truth of the assertions, as that was contrary to BRL.

31. [134]

    The defendant also submitted the Tribunal was correct to not rely on the witness statements, referred to at [64] and [65] of CXZ No 1, to make positive findings against CXZ, in light of the fact that:

    1. (1)

       CXZ disputed the content of the witness statements;

    2. (2)

       the persons did not give evidence before the Tribunal; and

    3. (3)

       the evidence was not subject to cross-examination in the course of the acrimonious family court proceedings.

32. [135]

    It was submitted that allegation 5, as appeared at [65], concerned acrimonious family law proceedings, concerning the custody of children. The defendant submitted that in this particular case, in the absence of the witnesses being available for cross-examination on their respective accounts of the alleged events, the Tribunal did not make a finding that it was more probable than not that the alleged events did occur (see CXZ No 1 at [116]-[121]). However, as Fagan J explained in BRL at [24] and [29], such an outcome is the result of the Children’s Guardian forensic decision making.

33. [136]

    It may be noted that in reply to those submissions, the Children’s Guardian contended:

34. [137]

    CXZ contended that the correct course was to consider whether there was a course of conduct and an examination of the surrounding circumstances of the allegation per BKE. Ultimately, the Tribunal found CXZ was not violent towards the second wife. The allegation was so broad or vague, the Tribunal could not conclude there were specific acts of violence.

35. [138]

    This case must be distinguished from CFW because, unlike that case (where the Tribunal left open the conclusions reached as to allegations made by the Children’s Guardian), the Tribunal decided the allegations in favour of CXZ and did not accept the matters set out in the “AVO” and the “two affidavits”. By making a “positive” finding, the Tribunal accepted the evidence of CXZ that he did not engage in the conduct in question (as described in paras [64] and [65]).

36. [139]

    The Tribunal was entitled to give the AVO no weight (CXZ No 1 at [116]) as the contents of the AVO could not be elevated to a finding as to the truth of the fact asserted. Similarly, as to the family law proceedings (at [117]), the complainant was never produced for cross-examination and the evidence before the Family Court was never tested (there were a large number of affidavits from the family law proceedings placed before the Tribunal). This may be contrasted to the direct evidence given by CXZ. In the result, the Tribunal found that it did not accept the allegations. Further, it was not appropriate that the Tribunal go through a large number of affidavits to determine whether or not the allegations were groundless.

37. [140]

    CXZ contended that the fourth and fifth allegations were “not proven” (this is what the Tribunal meant by finding that it could not make any positive findings about the alleged conduct contained in the documentation from the “2002 and 2003 Family Law proceedings”).

38. [141]

    It was submitted that Tribunal’s reasons at [119] and [143]-[148] of CXZ No 1, involve the Tribunal making findings after weighing the evidence. They come to the conclusion, it was contended, that the violence between adults is not relevant to their assessment of current risk to children and, further, “that risk is no longer ongoing because of the evidence that CXZ has had the children for a significant period of time without any issue” and is no longer in a relationship with his second wife. There is no evidence of violence in his further relationship. Expert opinion in the Family Court of Australia was that the applicant had a stronger attachment to his children than his former wife. There was no adverse indication in an employment context: CXZ No 1 at [151].

39. [142]

    The Tribunal correctly identified (at [152]) that the question they needed to resolve was whether CXZ posed a “current, a real and appreciable risk to children”. It was submitted that the Tribunal summarised its assessment of the evidence at [153] and properly weighed that evidence.

40. [143]

    The Tribunal provided a reasoned decision as to all mandatory requirements.

41. [144]

    Finally, as to ground 1(a), CXZ contended that the ground did not raise a question of law, as M v M did not require the Tribunal to determine whether the allegations were groundless.

42. [145]

    As to grounds 1(b) and (c), the Tribunal did take the allegations in CXZ No 1 [49], [51], [53], [64] and [65] into account in its fact finding and risk assessment process.

Ground 2

1. [146]

   As to ground 2 and the application of s 62(3) of the CAT Act, CXZ submitted that a failure to apply that section may be an error. However, on a proper reading of CXZ No 1, the Tribunal gave reasons. It addressed all relevant factors under s 30 of how CXZ did not pose a risk.

2. [147]

   Further CXZ submitted:

3. [148]

   The Tribunal also set out the reasoning process that led it to those conclusions and the evidence they relied on at [143]-[152].

4. [149]

   The Tribunal explained why it found that CXZ did not pose a real and appreciable risk to the safety of children: see CXZ No 1 at [153].

5. [150]

   In terms of the relevant principles in assessing whether there has been a failure to comply with the obligations set out in s 62(3), the appeal court “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 at [17] (per McColl JA (Sackville AJA and Gzell J agreeing); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (“Wu Shan Liang”) (at 291).

6. [151]

   When fairly analysed, it is clear that the Tribunal was fully aware of the context of the allegations and the objectives of the Act in reaching the conclusion at [153] of CXZ No 1 that CXZ does not at the correct time pose a real and appreciable risk to the safety of children.

7. [152]

   Secondly, it is not necessary for the Tribunal to make findings with respect to each piece of evidence, matter or submission made by a party: Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]. The failure of the Tribunal to refer to each piece of evidence, does not, in and of itself, constitute a legal error.

The Contention

1. [153]

   CXZ accepted that the matters raised on the Contention were not raised below. However, it was submitted:

   1. (1)

      CXZ’s solicitor acted pro bono.

   2. (2)

      The Children’s Guardian is a model litigant and was represented by counsel. The Children’s Guardian should not have made a submission that the material was relevant for all purposes.

   3. (3)

      A party cannot rely upon evidence for the purpose of proof unless the deponent is available for cross-examination, although it was conceded that CXZ did not seek any person be made available for cross-examination.

   4. (4)

      If the material is not rationally probative it should not be admitted: FZ at [63].

   5. (5)

      In the light of CXZ’s denials, contrary material, not supported by evidence, should have been given little weight (BRL at [31], [32] and [45]).

2. [154]

   It was conceded that, if the Court found that the Tribunal had concluded the allegations were not groundless, the contention could not be pursued by CXZ.

Ground 1

1. [155]

   The Children’s Guardian brings an appeal under cl 17(1)(a) of Sch 3 of the CAT Act. That provision provides for an appeal to this Court on a question of law from the decision of the Tribunal in which the Tribunal undertook an administrative review of a decision of the Children’s Guardian, in CXZ No 1, refusing a working with children check clearance pursuant to s 63 of the ADR Act. The decision of the Children’s Guardian was in determination of the application brought by CXZ under s 27(1) of the Act.

2. [156]

   It was common ground that, in determining the application by CXZ, the Tribunal was bound to apply to provisions of s 18(2) of the Act. Further, there was no dispute that the Tribunal posed for itself, in that respect, the correct question or test – whether the Tribunal may be satisfied that CXZ posed a risk to the safety of children, as the test was formulated in V. Thus, the Tribunal posed the question of whether there was a real and appreciable risk to the safety of children.

3. [157]

   Rather, the Children’s Guardian primary contention (by way of a refinement during submissions of ground 1) was that, with respect to the allegations, the Tribunal erred in law by failing to apply the provisions of s 18(2) in accordance with the law as stated in M v M and CFW. In particular, it was contended that the Tribunal failed, in reaching a state of satisfaction as to whether CXZ posed a risk to the safety of children, to assess whether the allegations were “groundless” or, if the Court should find the Tribunal had found the allegations were not groundless, whether it held lingering doubts or suspicions as to the allegations. In the latter case, it was contended that the Tribunal, by that omission, failed to take into account such a consideration when assessing whether there was a risk for the purpose of s 18(2) (including the particular and cumulative weight to be attached to such factors when assessing the question of risk).

4. [158]

   Little was advanced in submissions as to whether the appeal, so stated, constituted an appeal on a question of law against a decision. CXZ stated in written submissions that ground 1(a) did not raise a question of law “as drafted as M v M did not require the Tribunal to determine whether the allegations… were groundless”. As to grounds 1(b) and (c), it was submitted no question of law was raised as the grounds simply contended that the Tribunal failed to take into account the allegations in its fact finding and risk assessment process.

5. [159]

   Those submissions by CXZ, however, were advanced prior to the abovementioned refinement to the submissions of the Children’s Guardian as to the grounds of appeal or contentions in support of the same. In my view, as ultimately stated, ground 1 of the appeal constitutes an appeal on a question of law against the decision of the Tribunal, namely, whether the Tribunal misconstrued or misapplied s 18(2) of the Act and thereby failed to discharge its statutory functions in determining the application by CXZ for administrative review under s 27(1) of the Act. A further and related question was whether the Tribunal failed to conform with authority, namely, CFW.

6. [160]

   Much attention was given by CXZ in that respect to distinguishing M v M and BKE from the present matter.

7. [161]

   However, the Children’s Guardian relied upon the judgment in CFW (and judgments of this Court following that judgment) to contend the relevant tests under s 18(2) were established by that authority and were binding upon the Tribunal.

8. [162]

   It is appropriate to commence with that contention by Children’s Guardian, as the authority in CFW, unlike M v M and BKE, concerned the same legislative provision applied by the Tribunal in the decision below, namely s 27 (I note that that provision and s 18(2) were materially the same in 2016, as the provision which was operative at the date the decision of the Tribunal in this matter. The earlier provision concerned the refusal of a working with children check clearance after a risk assessment by the Children’s Guardian albeit, in CFW, one triggered by s 14 of the Act).

9. [163]

   The ground of appeal Harrison J addressed in the often cited passages of his judgment in CFW (at [13]-[17]) concerned the resolution of a ground of appeal raising similar issues to the present matter, namely, whether the Tribunal had “misconstrued or misapplied s 18(2)” and “thereby failed to discharge the statutory functions and duties” reposing in the Tribunal to consider whether an application for “clearance” posed a risk to the safety of children (see CFW at [12]).

10. [164]

    It would appear that CXZ sought to draw a distinction between the facts and circumstances of CFW and this matter, along similar lines to the distinction sought to be drawn between M v M and BKE and this matter, namely, that those cases (and CFW) only concerned cases involving allegations of sexual assault against a child and did not have general application. It may be noted that the risk assessment procedure under the Act in CFW was triggered as a result of the respondent having been charged with, but acquitted, of the offence of possess child pornography under s 578B of the Crimes Act 1900 (NSW). However, I will initially approach the contention by CXZ on the assumption that the child pornography charges raised issues of a similar kind as the charges of sexual assault of a child considered in M v M and BKE.

11. [165]

    The often cited passage of Harrison J’s judgment to which I have referred (CFW at [13]-[17]) is extracted below:

12. [166]

    His Honour did not refer to the “three stage process” - a concept or notion which occupied a significant proportion of the submissions of the parties. What is clear, in my view, is that his Honour was concerned to distill, having regard to his acceptance, in reliance on BKE, that M v M applied to the acceptance of risk under s 18(2) of the Act (at [13]), the considerations which thereby bore upon the making of findings of a risk by the Court or the Tribunal when acts of allegations of wrongdoing were relied upon by the Children’s Guardian.

13. [167]

    The stages of analysis undertaken by his Honour, whether two or three in number, represented a logical sequence of reasoning with respect to a given set of allegations and are designed to plumb the full range of considerations relevant to the assessment of risk of safety to children for the purposes of s 18(2) of the Act and having regard to the object of the Act being to “protect children”. It may be observed that the High Court in M v M emphasized, albeit in a different statutory context (ss 60D and 64 of the Family Court Act 1975 (Cth)), that the flaw in the applicant’s argument in that matter was to identify the allegation of sexual abuse as the paramount issue as opposed to the welfare of the child.

14. [168]

    It follows that, on this approach, the Tribunal was required to assess all allegations raised by the Children’s Guardian although the Tribunal may have disaggregated its consideration of the respective allegations and legitimately undertake a staged consideration in its judgment as it considered fit (as it did in the decision below), provided there was overall compliance with the requisite statutory requirement.

15. [169]

    CFW was followed and applied in CFJ at [70] (corresponding to [14] and [15] of CFW – Schmidt J also referred to the resolution of whether the Tribunal had no hesitation in rejecting the allegation as groundless) and [72] (as to [16] of CFW) and CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 (“CMD”) at [49] (in which McCallum J expressly referred to a “three-stage analysis”).

16. [170]

    It is apparent from [45]-[56] of CKF that Davies J accepted the first two “propositions” set out by Harrison J in CFW. There is no demur from those propositions by his Honour, notwithstanding a substantial discussion of the relevant passages of CFW and some express reference to the test without disagreement (see, for example, [45] in CKF).

17. [171]

    Further, I agree with the Children’s Guardian, that Davies J did not reject that it was relevant to consider, if the Tribunal was not positively satisfied that an act alleged had occurred in assessing risk, whether or not a lingering doubt or suspicion remained. That was a matter to be considered “when all of the evidence is weighed up in assessing whether the defendant [posed] a risk to the safety of children”. His Honour rejected the notion that “an open finding” or a remaining lingering doubt or suspicion counted against the applicant for a working with children check clearance (see CKF at [55]).

18. [172]

    CXZ invited a finding that, in the disputed area between the judgments in CFW and CKF, CKF was correct.

19. [173]

    Three observations may be made about that submission:

    1. (1)

       The issue arising in the final stage of Harrison J’s test as to risk only emerged, in the case of an allegation of wrongdoing, if the allegation is found not to be proven and could not be dismissed as groundless: DAR v Children’s Guardian [2018] NSWSC 942 (“DAR”) at [51] (per Adamson J).

    2. (2)

       The apparent inconsistency between trial judges can only properly be resolved by a higher court. Further, I do not accept the submission of CXZ that the judgment of Schmidt J in CFJ expresses a contrary opinion to that of Harrison J in CFW as to the tests under s 18(2) and, in particular, as to his Honour’s view (in CFW) at [16].

    3. (3)

       The difference between the judgments is relatively fine, particularly as both judgments accept that the consideration of any “lingering doubt or suspicion” must be assessed in terms of risk and that, such a doubt may, subject to the degree of significance or gravity attached to it by the Tribunal, count against an applicant challenging a refusal to grant a working with children check clearance. The issue in this case is whether the Tribunal made any assessment of that kind and thereby properly evaluated the weight to attach to the allegations, assuming the Tribunal had reached a finding of the kind described in (1) above. The contention was that the Tribunal had not made the assessment at all, let alone whether it would count against CXZ.

20. [174]

    It follows that the judgment in CKF established no proper basis for the Tribunal not to apply the principles stated in CFW in the instant case.

21. [175]

    Given a ground of appeal was that the Tribunal failed to articulate whether it held such a doubt (and evaluate the weight to be attached to that consideration), and both CFW and CKF establish that is a relevant consideration, it follows that a failure to take into account that assessment would constitute an error of law. It further follows that CXZ’s challenge to CFW, even if correct, could not constitute a basis for not following CFW in this case.

22. [176]

    Nor is there any basis to distinguish the present matter as CXZ sought to do in contending that BKE, which imported M v M into the consideration of risk under the Act, concerned a decision made under s 28 of the Act. Each of the decisions in CFW, CFJ, CKF, DAR and CMD concerned appeals from a review conducted by the Tribunal under s 27 of the Act.

23. [177]

    What remains is to consider the distinction sought to be drawn by CXZ between this matter and CFW based upon the absence of allegations in this case of sexual assault of a child. As earlier mentioned, I will assume for that purpose that the factual circumstances addressed in CFW fell within that class.

24. [178]

    In my view, the distinction sought to be drawn by CXZ is, when M v M and BKE are properly considered unavailable.

25. [179]

    There are two passages from the judgment in BKE which attracted particular attention. The first was [30] which was as follows:

26. [180]

    The passage from M v M to which his Honour alluded concerned the High Court’s consideration of Gun J’s judgment in the Family Court of Australia which was under appeal in the Full Family Court. Gun J made an order discharging an order for custody by a husband in favour of a wife in order to eliminate the risk that a child might be sexually abused (see M v M at 70, 71 and 75).

27. [181]

    The Full Family Court dismissed an appeal from that decision. The dissenting judgment had emphasised Gun J’s reliance upon “lingering doubts” that he had that the husband had sexually abused the child. The High Court accepted the majority in the Family Court had correctly identified the trial judge’s reasons as representing a “doubt that he had about the possibility that sexual abuse had taken place and might take place if the father were to have access…” (M v M at 75).

28. [182]

    In BKE, Beech-Jones J considered a matter where the Tribunal had made a finding that the plaintiff was guilty of a charge (of indecent assault against a grandson), notwithstanding the dismissal of the charge in criminal proceedings and the absence of notice that a finding to that effect may be made. Thus, in the immediately preceding paragraph of BKE (to that extracted above) his Honour observed that, notwithstanding the Tribunal was not bound by the rules of evidence, it would do well to have had regard to the principles in Briginshaw if it considered making a positive finding that an “applicant sexually abused a child in circumstances where they were not convicted of doing so”.

29. [183]

    Whilst his Honour was concerned there were allegations of “sexual abuse of child”, the guidance to which his Honour referred was primarily directed to circumstances where a Tribunal could not make “a positive finding” but, nonetheless, considered there was a remainder of risk to the safety of children under the Act.

30. [184]

    Hence, after referring to a distinction under the family law jurisdiction as to the assessment of risk (vis-à-vis mitigating measures) and the onus falling upon the plaintiff (under s 28 of the Act), his Honour stated at [33]:

31. [185]

    In my view, and with respect, that passage of his Honour’s judgment, which is a derivative of the judgment of the High Court in M v M at 77, was concerned to state the applicability of M v M, as a matter of principle, to all cases where the Tribunal was required to undertake fact finding and assess risk. The guidance afforded was to circumstances where an allegation had not been made out but the paramountcy of the welfare of the child required a broader consideration of risk having regard to the circumstances surrounding a particular incident or a course of conduct by an applicant. The reference to allegations of sexual abuse is merely a reflection of the particular subject matter then before the Court.

32. [186]

    Recourse to M v M is productive of the same conclusion.

33. [187]

    CXZ was correct to submit that the High Court found that the determination as to whether a person has engaged in the alleged conduct (in M v M, sexual abuse) was subservient to and ancillary to the determination of what is in the best interest of the child (M v M at 76). The High Court in M v M was considering the matter in the context of then s 60D of the Family Law Act 1975 which then provided that the Family Court “shall regard the welfare of the child as the paramount consideration”.

34. [188]

    That brought the High Court to consider risk in a context where the Court could neither “come to a positive finding that an allegation was well founded” nor that the Court could have no hesitation “in rejecting the allegation as groundless”. The High Court found:

35. [189]

    The “wider issue” referred to by the Court was, in my view, a reference to the determination of the interests of the child by reference to risk, in the light of strong practical reasons why the Court might refrain from making a finding that a sexual assault had actually taken place unless the Court was compelled to do so (see M v M at 77).

36. [190]

    Whilst the issue before the High Court in M v M concerned sexual abuse, the High Court’s observations as to the assessment of risk were not confined to that subject matter. Thus, the High Court stated, in the immediately preceding extract from M v M extracted in this judgment, that the Family Court often assessed the “likelihood or probability of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare”.

37. [191]

    Further, in that same extract from the judgment in M v M above, the High Court’s statement of the fundamental matter to be taken into account in deciding issues of custody and access was not confined to an assessment of the existence and magnitude of risk “of sexual abuse” but extended to “other risks of harm to the welfare of a child”.

38. [192]

    In my view, the principles imported from M v M by BKE concerned broadly the manner by which an assessment should be made as to the risk to the safety of children and, in particular, the approach to such a question where an allegation was not proven but, equally so, was not groundless.

39. [193]

    Whilst the existence and magnitude of the risk may vary depending upon the nature and scope of the alleged conduct or likelihood of conduct, there is no proper basis for confining the operation of those principles to sexual assault or abuse cases based upon M v M, BKE or the authority of this Court which came after BKE. No such limitation is to be found on the face of s 18(2) and no implication of that kind ought to be drawn having regard to the objects and purpose of the Act to protect children.

40. [194]

    There is a variety of conduct which may pose a risk to the safety of children or the likelihood of the same outside of sexual assault or abuse. Access to the child pornography (which was considered in CFW) may be said to be consistent with a finding that there may be a likelihood of sexual abuse. No reason was proffered by CXZ as to why exposure to violence between parents or by a parent to his/her partner may not pose a risk to the safety of a child, harm occasioned by those experiences or that the potential for such violent conduct might not ultimately involve the risk of exposure of the children themselves to such violence.

41. [195]

    In my view, the Tribunal was required to apply the principles in CFW (and M v M and BKE) in the determination of the application before it under s 27 of the Act. Those principles should be applied in the determination of ground 1 of the appeal.

The Allegations

1. [196]

   The Court does not have the evidence that was before the Tribunal and, therefore, does not have the material referred to in the allegations as described by the Tribunal. Nor does the Court have the precise formulation of the allegations as may have been stipulated to the Tribunal by the Children’s Guardian. The Court is left to infer what the particular allegation was from the description given to it by the Tribunal in the course of its reasoning. That task is made difficult by a number of factors.

2. [197]

   First, the Tribunal approached the allegations through the portal of the source of the allegation, such as an AVO without setting out the terms of that document and the specific allegation said to arise from it.

3. [198]

   Secondly, the paragraphs of the Tribunal’s decision said by CXZ to constitute the allegations do not in all cases align with an allegation. Specifically, allegations 1 and 2 are said to appear at [51] and [53] of the Tribunal decision, respectively, in fact appear at [50] and [52] of the Tribunal decision (although the Tribunal’s findings as to the allegations are found in the paragraphs nominated by the Children’s Guardian).

4. [199]

   Thirdly, the nature and context of the allegations, as described by the Tribunal, is sometimes ambiguous and expressed in very general terms.

5. [200]

   Fourthly, CXZ referred to various passages of the Tribunal, other than those nominated by the Children’s Guardian as constituting the Tribunal’s full examination of the allegations, to demonstrate that the Tribunal undertook the requisite assessment without strictly correlating those later passages to a particular allegation (it was not suggested by the Children’s Guardian the Tribunal was required to do so).

6. [201]

   Bearing in mind those factors, I shall proceed to deal with the contentions advanced by the Children’s Guardian, noting that it was ultimately argued by the Children’s Guardian that the Tribunal needed to consider the allegations cumulatively in order to assess risk.

7. [202]

   The first allegation appears to be that the applicant had made threats against his first wife and her then partner (see CXZ No 1 at [50]).

8. [203]

   The Tribunal specifically discusses allegation 1 within the four walls of paragraphs [50] and [51] of the Tribunal’s decision.

9. [204]

   At other points in its decision, the Tribunal broadly traverses the applicant’s relationship with his first wife. However, it would not appear that, even on a broad reading of the Tribunal’s decision, when read as a whole, the Tribunal addressed the allegation outside of the decision in para [50] and [51]. There is no doubt the Tribunal considered violence towards the applicant’s first wife elsewhere in its decision, but not the specific matters raised in allegation 1.

10. [205]

    For example, in [147], the Tribunal accepted “that the applicant was violent towards his first wife” and that “the applicant’s children witnessed violence between their parents”, but this does not traverse the issue in allegation 1 which concerned threats made by the applicant against his first wife and her then partner.

11. [206]

    A further illustration is that the Tribunal’s concluding remarks noted that it had given particular weight to the findings of Drs Jones and Allnutt, including the following findings:

    1. (1)

       Dr Jones reiterated his view that, despite the additional information provided to him and in the absence of any further witness testimony in relation to allegations made against the applicant, his initial opinion, expressed in his report, remained unchanged (CXZ No 1 at [99]).

    2. (2)

       Dr Allnutt noted the applicant’s history of allegations for violent behaviour did not change the opinion set out in his earlier report, noting that the case was one relying on the factual findings of the Tribunal itself (CXZ No 1 at [104]).

    3. (3)

       Dr Allnutt also noted in relation to the allegations of domestic violence against the applicant, that there had been no complaints for the past nine years and that his risk decreased with age (CXZ No 1 at [106]).

12. [207]

    No part of the Tribunal’s discussion of those reports recognises that the psychiatrists deal with allegation 1 as I have described it.

13. [208]

    Thus, even on a generous view of the Tribunal’s decision, those passages of CXZ No 1 (sitting outside the passages dealing with the allegation per se), do not address the allegation.

14. [209]

    It follows that in order to test whether the Tribunal discharged its statutory obligations, as discussed in the legal principles above, it is necessary to consider its judgment within the confines of [50] and [51] of its reasons for decision.

15. [210]

    The Tribunal found at [51] that “we cannot make any positive finding about the alleged conduct”. Having regard to the aforementioned discussion of authority, I consider that, properly construed, that finding by the Tribunal was that, on the balance of probabilities and to the requisite standard, the Children’s Guardian had not established, in the proceedings before it, the allegation to be made out, or, to use the language employed by the High Court in M v M, the Tribunal did not make a positive finding the allegation was well founded on the evidence (or that it could confidently make a finding that the alleged conduct had occurred).

16. [211]

    As to the question of whether the Tribunal made a finding as to whether the allegation was groundless, my primary conclusion is that the concession by the Children’s Guardian (albeit in the alternative) should be accepted, namely, the Tribunal made no definitive finding as to that matter, in a similar manner to its deliberation regarding the first step (as to whether the allegation was made out). In short, the Tribunal’s finding that no positive finding could be made encompassed both the first and second steps required in the assessment of risk.

17. [212]

    To the extent that the Tribunal may be found to have, by implication, made a finding as to whether the allegation was or was not groundless (contrary to the above conclusion), then the proper implication to be drawn from the decision of the Tribunal, when taken as a whole is, in my view, the Tribunal was inclined to the view the allegation was not groundless.

18. [213]

    Thus, without suggesting the Tribunal expressly made a finding that the allegation was not groundless, and contrary to my primary conclusion, there are components of the decision which, as discussed below, support a finding that the Tribunal would not have, without hesitation, found the allegation to be groundless. That same approach is applicable to each of the allegations save for allegation 5 where the Tribunal did not appear to have traversed the question.

19. [214]

    First, the Tribunal’s statement that it “was unable to test the veracity of the complainant’s version”, and that the “AVO was made by consent and without admissions”, demonstrated why the allegation was not made out to the requisite standard and also, implicitly, that there was material before the Tribunal which meant the allegation would not be dismissed as groundless, and the Tribunal did not do so.

20. [215]

    Secondly, as to the Tribunal being unable to test the veracity of the complainant’s statement, I accept that it was not open to the Tribunal to make a finding rejecting the complainant’s statement in those circumstances. In that respect, it might be noted that I accept the submission of the Children’s Guardian that the principles stated in FZ do not apply as the complainant was not sought for cross-examination.

21. [216]

    In FZ, Young JA stated (at [25]):

22. [217]

    However, such principles were expounded in circumstances where the complainant had been sought for cross examination. That background was explained by Harrison J at first instance in FZ v Commissioner for Children and Young People [2010] NSWSC 1144 (at [69]) as follows:

23. [218]

    As mentioned, in the present case the complainant was not sought for cross-examination.

24. [219]

    In both of the circumstances described above, the Tribunal made no definitive finding the allegations were groundless (or made out) and, alternatively, by implication, the Tribunal may be taken as finding (by implication) “without hesitation” the allegation was not groundless, the Tribunal was obliged (in accordance with the aforementioned discussion of principles) to decide whether, on the evidence as to the allegation, CXZ nonetheless posed a risk to the safety of children. That step (sometimes described, as earlier discussed, as the third step in the requisite inquiry under the Act) required an evaluation of whether the evidence was demonstrative of a risk, and, if so, its likelihood (including a consideration of the date of the alleged conduct and as such, whether the risk was “current”).

25. [220]

    In evaluating whether the Tribunal undertook that task I have had regard to the paragraphs of the judgment relied upon by the Children’s Guardian and any other passages of the Tribunal’s judgment which potentially related to or concerned that issue as set out above.

26. [221]

    On the basis of the foregoing analysis, I am of the view that the Tribunal made no such assessment.

27. [222]

    At no point in the paragraphs nominated by the Children’s Guardian (namely, CXZ No 1 at [50]-[51]) did the Tribunal discuss the risk that the applicant posed to children in the light of the evidence as to allegation 1. The Tribunal (at [50]) referred to the explanation given by CXZ for the issuance of the 1995 AVO. CXZ stated “the 1995 AVO arose in circumstances where I was trying to protect my children from harm”. The Tribunal also referred to CXZ’s concern that the partner of his first wife “had been sexually assaulting his daughters”. It was implicit in this evidence that CXZ did engage in some conduct relating to the allegation, although the particular conduct engaged in is not well defined. However, within these paragraphs, the Tribunal did not assess what implications these issues had for the risk posed to children.

28. [223]

    Additionally, as mentioned above, the Tribunal did not address in its decision the allegation outside of the nominated paragraphs. The same can be said of the Tribunal’s assessment of the risks which might be found to exist in the light of the evidence as to allegation 1.

29. [224]

    Overall, to use the categorisation adopted by the Children’s Guardian (as referred to in some of the authorities discussed above), the Tribunal did not undertake the third step of the inquiry, either in the nominated paragraphs by the Children’s Guardian or when the judgment was considered as a whole with respect to allegation 1.

30. [225]

    Allegation 2 was stated as follows:

31. [226]

    The Tribunal’s finding in relation to allegation 2 was as follows (at [53]):

32. [227]

    There is no relevant difference in the language used by the Tribunal in respect of allegation 2 and allegation 1, namely, the Tribunal “cannot make any positive finding about the alleged conduct”. It follows that the same conclusion should be reached as allegation 1. Further, as with allegation 1, if a contrary finding should be available, there are components of the judgment discussed below which indicate that the Tribunal (by implication) would not without hesitation, have dismissed the allegation as groundless.

33. [228]

    The Tribunal attached particular weight to the report of Dr Jones. The Tribunal seemed to accept the finding of Dr Jones (CXZ No 1 at [95]) that “the applicant conceded a history of domestic violence with his second wife and that there was ‘bilateral physicality’ but that he had never been charged with any violent offences related to domestic violence despite there having being a number of apprehended violence orders in place over the course of the relationship”. The conclusion seems to accept there was some violent conduct between CXZ and his second wife as well as the issuance of AVOs (which appeared to be linked to that conduct).

34. [229]

    As with allegation 1, here the question nonetheless arises as to whether, on the evidence as to allegation 2, the Tribunal evaluated whether CXZ, in those circumstances, nonetheless posed a risk to the safety of children.

35. [230]

    In evaluating whether the Tribunal undertook that task I have once again had regard to the paragraphs of the judgment relied upon by the Children’s Guardian and other passages of the Tribunal’s judgment which related to or concerned that issue.

36. [231]

    I accept that, in the paragraphs referred to by the Children’s Guardian as setting out allegation 2, the Tribunal did not do so. The Tribunal (at [52]) accepted that, according to court papers before it, “an AVO was issued against the applicant on 22 June 2000 for a period of twelve months”. However, when considering the significance of the AVO, the Tribunal merely concluded (at [53]) that it could not make any positive findings about “the alleged conduct of the applicant”, without proceeding to discuss the risk to children that CXZ posed based on the evidence as to the allegation.

37. [232]

    Nevertheless, it is clear that elsewhere in its decision, the Tribunal assessed the weight that it would place on the evidence as to the issuance and substance of the AVO in relation to CXZ’s risk to children. That much is clear from the Tribunal’s statement at [116]:

38. [233]

    In this passage, the Tribunal once again accepted that the 2000 AVO had been issued. The Tribunal then referred to some of the evidence relevant to its determination of the risk that CXZ posed to children, including details as to the granting of the AVO and evidence from the complainant, and noted the weakness of that evidence. However, unlike in the passages referred to by the Children’s Guardian, the Tribunal then expressly discussed the “weight” that it would attribute to the AVO, in light of the evidence before it, “in determining whether the applicant currently poses a risk to children”. In this way, the Tribunal clearly engaged in the third stage of the inquiry.

39. [234]

    Further, as earlier mentioned, the Tribunal gave “particular weight” to the report of Dr Jones. That report found that CXZ posed a low risk to the safety of children in spite of the CXZ’s conceded history of domestic violence with his second wife and the AVOs in place over the course of their relationship. The weighing exercise undertaken by the Tribunal in respect of the report of Dr Jones once again demonstrates that the Tribunal had engaged in the third stage of the inquiry.

40. [235]

    Thus, in my view, despite the Tribunal not addressing the third stage of the requisite inquiry in the passages referred to by the Children’s Guardian, the Tribunal has done so when the Tribunal’s decision is viewed as a whole.

41. [236]

    Allegation 3, as framed in [49], was that “the applicant was physically violent towards his second wife”. While the allegation is thus expressed broadly, the Tribunal seems to provide more detail in [55], where it states:

42. [237]

    As mentioned, the Tribunal, in its reasons for decision, did not extract much of the primary documentation it relied upon, including the “case summary report” referred to in the above quote. It is, therefore, unclear, for example, if allegation 3 encompasses aspects of allegations 2 and 4. For present purposes I will treat the allegations as distinct. Later in the judgment, I will consider whether the Tribunal correctly approached the cumulative weight of the allegations.

43. [238]

    The Tribunal’s finding, with respect to allegation 3, was as follows (at [49]):

44. [239]

    The language employed by the Tribunal was notably different to that expressed in relation to grounds 1 and 2. In addressing allegation 3, the Tribunal stated that it could not be satisfied “on the balance of probabilities” as to the allegations (as mentioned, the Tribunal used the language “cannot make any positive finding” in dealing with allegations 1 and 2). I consider that the language used in relation to allegation 3 was even more strongly indicative (than in allegations 1 and 2) that the Tribunal did not make a definitive finding that the Children’s Guardian had established the allegation as made out, or that the allegation was groundless.

45. [240]

    As in the case of allegations 1 and 2, if it was found, contrary to the above conclusion, that the Tribunal had made a definitive finding, there are elements of the decision of the Tribunal which indicate that the Tribunal would not without hesitation, dismiss the allegation as groundless.

46. [241]

    This discussion should commence with the Tribunal’s general finding that CXZ was a witness of truth. The Tribunal stated (at [108]):

47. [242]

    Whilst this finding was expressed in broad terms, it is reasonably clear that the finding extended to the entirety of CXZ’s evidence, including the evidence given in relation to the allegations. On one view, that conclusion applied, without more, to allegations 3, 4 and 5. It may be thought in that sense that the Tribunal had found those allegations to be groundless because CXZ apparently denied those allegations in his evidence before the Tribunal.

48. [243]

    However, as will be discussed below, the broader consideration of the Tribunal’s approach to those allegations (at several stages of its decision) significantly mitigates that assessment because the Tribunal alluded to concessions made by CXZ as to his conduct with respect to allegation 3, which, by virtue of the Tribunal’s acceptance of CXZ as a witness of truth, the Tribunal should be taken to have been accepted as true.

49. [244]

    On balance, I do not consider the Tribunal’s acceptance of CXZ’s evidence sustains a conclusion that the Tribunal found allegation 3 to be groundless. The same can be said of allegations 4 and 5. I shall elaborate.

50. [245]

    In the case of allegation 3, the Tribunal (at [74] and [119]) accepted the evidence contained within the case summary of the Independent Children’s Lawyer filed 2 November 2006. That case summary referred to admissions made by CXZ and his second wife, namely, that they were violent towards each other and that the children were exposed to the violence. The passage of the case summary was extracted by the Tribunal as follows (at [73]):

51. [246]

    The Tribunal appears to have accepted an admission of a mutuality of violence of which CXZ was a participant, thereby involving violence by CXZ towards his second wife. This did not necessarily involve an acceptance that CXZ was “physically violent” towards her, as the word “violence” in the context of the case summary of the Independent Children’s Lawyer is ambiguous and would seem to extend to non-physical acts, such as the threat of violence. Nevertheless, the concession of violence, by its nature, demonstrated that, even if CXZ’s conduct was not precisely as alleged, the Tribunal had evidence before it, which it relied upon, to the effect that CXZ did engage in such conduct.

52. [247]

    This approach is also informed by other findings of the Tribunal’s decision which traversed the CXZ’s relationship with his second wife. A few examples are as follows:

    1. (1)

       At [77], the Tribunal found:

    2. (2)

       At [119], the Tribunal accepted that the CXZ’s sons witnessed violence between their parents.

    3. (3)

       In its concluding remarks, the Tribunal stated (at [147]-[148]):

53. [248]

    Those passages, when read in conjunction with the Tribunal’s finding at [49], may also indicate that the Tribunal considered that the evidence of violence in the relationship was not so insufficient as to make the allegation groundless, but that the evidence was not sufficient to make a positive finding of wrongdoing.

54. [249]

    What remains is an assessment as to whether the Tribunal correctly undertook the exercise of weighing the evidence before the Tribunal in relation to allegation 3 when assessing the risk that CXZ posed to the safety of children.

55. [250]

    As in my consideration of the previous allegations, in evaluating whether the Tribunal undertook that task, I have had regard to the paragraphs of the judgment relied upon by the Children’s Guardian and other passages of the Tribunal’s judgment which related to or concerned that issue.

56. [251]

    I am of the view that the Tribunal clearly made such an assessment.

57. [252]

    It may be accepted, as submitted by the Children’s Guardian, that the Tribunal did not address the issue in the paragraphs nominated by the Children’s Guardian as constituting the allegation. Similarly to allegation 2, the Tribunal merely sets out the allegation and makes a finding as to the CXZ’s conduct. The Tribunal does note (at [49]), however, that “the allegations that the applicant was physically violent towards his second wife are serious ones”. Taken at its highest, the word “serious” may have been used by the Tribunal to suggest that any evidence relevant to allegation 3 would have serious implications on the Tribunal’s assessment of the risk that CXZ posed to children. However, even if this were the case, having considered the evidence as to the allegation in the subject paragraph, the Tribunal goes no further in dealing expressly with the risk CXZ posed.

58. [253]

    Nevertheless, the Tribunal did undertake the weighing process mandated by the third stage of the inquiry in other parts of its decision. First, the Tribunal emphasised, and thus gave weight to, the fact that the evidence pertaining to allegation 3 was not indicative of the risk that CXZ “currently” posed. As mentioned above, the Tribunal was satisfied “that the domestic violence between the applicant and his second wife is no longer ongoing”. This was reiterated at [119] where the Tribunal stated:

59. [254]

    The Tribunal also extracted part of Dr Allnutt’s report at [103], which included the following finding by Dr Allnutt;

60. [255]

    The Tribunal further summarised Dr Allnutt’s report at [106], as follows:

61. [256]

    At [153], the Tribunal stated that it had given “particular weight” to the findings of Dr Allnutt (and Dr Jones). In doing so, in my view, the Tribunal thus endorsed Dr Allnutt’s report, which, as clear from above, specifically addressed the question of current risk in the light of allegation 3, finding that the CXZ was in the low range of risk.

62. [257]

    For these reasons, I conclude that the Tribunal did undertake the third step as categorised by the Children’s Guardian and discussed in some authorities.

63. [258]

    Allegation 4 was expressed as follows (at [64]):

64. [259]

    That allegation was comprised of two elements. The first element was “that the applicant was overbearing, manipulative and argumentative” (it appears that those words were intended to describe CXZ’s general disposition, rather than his behaviour in relation to a specific incident). The second element of the allegation was “that the applicant had been hitting his second wife”.

65. [260]

    The Tribunal’s finding in relation to allegation 4, which encompassed both elements of the allegation, was as follows (at [64]):

66. [261]

    For the same reasons as in allegations 1 and 2, the Tribunal’s expression “we make no positive findings” should be construed as the Tribunal making no definitive finding that the allegation was well founded or groundless. As was the case in relation to allegations 1, 2 and 3, there are components of the Tribunal’s decision which suggest that, if, contrary to that conclusion, the Tribunal was taken to have made a finding (by implication, as no express finding was made) as to whether the allegation was groundless, on balance, the Tribunal’s decision would suggest that the Tribunal would not, without hesitation, find the allegation to be groundless.

67. [262]

    As mentioned above, the Tribunal made a finding, which extended to its consideration of allegation 4, that CXZ was a witness of truth. The concessions made by CXZ, as discussed below, in relation to allegation 4, which were accepted by the Tribunal, clearly indicate that the Tribunal had not found allegation 4 to be groundless.

68. [263]

    First, the Tribunal (at [46]) referred to CXZ’s evidence in which he conceded that his conduct towards his second wife involved “actions” which “were always done in self-defence”. That passage is now extracted:

69. [264]

    Secondly, the Tribunal summarised (at [47]) CXZ’s oral evidence in this respect, which disclosed a similar concession:

70. [265]

    Thirdly, the Tribunal referred to CXZ’s first affidavit which disclosed an admission made by CXZ to his brother, which the Tribunal described as follows (at [69]):

71. [266]

    Fourthly, as mentioned in relation to allegation 3, the Tribunal (at [74] and [119]) accepted the evidence contained within the case summary of the Independent Children’s Lawyer filed 2 November 2006. That case summary referred to admissions made by CXZ and his second wife that they were violent towards each other (at [73]).

72. [267]

    As mentioned, due to the Tribunal’s aforementioned finding as to CXZ’s credit, such concessions and admissions were accepted as statements of truth by the Tribunal. The statements, by their nature, were probative of the fact that, even if CXZ’s conduct was not precisely as alleged, he did engage in some conduct that indicated risk. The statements might be taken as indicating some form of violence engaged in by CXZ in front of his children, even if it was accepted that the violence constituted self-defence.

73. [268]

    I turn then to the question of whether the Children’s Guardian made an assessment of risk, notwithstanding its findings as to the allegations as I have discussed above.

74. [269]

    I accept the submission of the Children’s Guardian that the Tribunal did not make such an assessment within the four walls of the allegation as expressed in the paragraph of the judgment relied upon by the Children’s Guardian in this respect. The Tribunal, as with allegations 2 and 3, merely set out the allegation and then stated its finding based on the available evidence without expressly referring to risk. The Tribunal does, however, use the wording “no positive findings in relation to the applicant” (whereas in previous findings the Tribunal had referred, in that respect, to CXZ’s conduct or whether CXZ had done the alleged act). Taken at its highest, those words may suggest that the finding extended not only to the allegation itself, but also to the risk CXZ posed in the light of the evidence as to the allegation. That conclusion is supported by the Tribunal’s statement that the finding was made on the basis of the material contained in the affidavit of CXZ’s sister-in-law. It could therefore be argued that the Tribunal considered the evidence as to the allegation and made a finding as to CXZ’s risk, rather than a finding as to whether the allegation was made out.

75. [270]

    However, on balance I do not consider that conclusion can be reached. The Tribunal emphasised that “the affidavit was prepared as part of acrimonious family law proceedings”, that “the applicant contested the truth of allegations” and that the “applicant’s sister-in-law was not cross-examined on the affidavit” when forming its conclusion that it could make no positive finding. These three aspects of the Tribunal’s discussion all go to the truth of the allegation, rather than specifically the risk that CXZ posed to children in the light of the evidence relating to the allegation. This construction being the better view, it is clear that the Tribunal did not address the third stage of the inquiry within the subject paragraphs.

76. [271]

    However, in my view, it is tolerably clear that in later discussion in its decision, the Tribunal did grapple with, and resolve, whether CXZ potentially posed a risk with respect to this allegation.

77. [272]

    In relation to the first element of the allegation, as mentioned above, the Tribunal stated that it had given particular weight to the findings of Dr Allnutt and Dr Jones in finding that CXZ posed low risk to children.

78. [273]

    Dr Allnutt opined (see CXZ No 1 at [103]):

79. [274]

    Dr Jones highlighted the current “protective factors” for the CXZ, including “stable close relationships which are active and engaging”.

80. [275]

    The Tribunal found the doctors considered that, while CXZ may have been aggressive (which presumably incorporates being “overbearing, manipulative and argumentative”) in the past, there had been not only an absence of such behaviour over a number of years, but furthermore the CXZ currently exhibited no such behaviour. As the Tribunal gave “particular weight” to the findings of the doctors in assessing the current risk of the CXZ, the Tribunal had satisfactorily undertaken an assessment of the evidence relating to the first part of allegation 4.

81. [276]

    As to the second element of allegation 4, I find that the Tribunal has conformed with what has been described as the third stage of the inquiry for the same reasons as analysed in relation to allegation 3 because that allegation (that CXZ was physically violent towards his second wife), encompasses the second element of allegation 4 (that CXZ was hitting his second wife).

82. [277]

    Allegation 5 was expressed as follows (at [65]):

83. [278]

    Once again, this allegation is framed ambiguously. Firstly, it was not made explicitly clear which of CXZ’s former partners was being referred to. Based on the years in question, I will proceed on the basis that the Tribunal was referring to CXZ’s second wife, from whom CXZ separated in 2002. Secondly, it is unclear if the threatening behaviour was alleged to have been directed at the CXZ’s second wife, their children, or both. I will assume that the allegation encompasses the broadest of these interpretations. However, it should be noted that many aspects of the CXZ’s relationship with his second wife and children fall outside the time frame of allegation 5. For example, the “2005 incident with daughter” and the “2008 report of son running away” (at [79] and [82], respectively).

84. [279]

    The Tribunal’s findings in relation to allegation 5 were in very similar terms to allegation 4, as follows (at [65]):

85. [280]

    The Tribunal’s expression “we make no positive findings” should be construed as in allegations 1, 2 and 4.

86. [281]

    It should be noted, in this respect, that unlike in allegations 3 and 4, the Tribunal did not refer to a statement of CXZ in which he made concessions as to allegation 5. The Tribunal referred to two affidavits in which CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law (at [68]). The Tribunal also extracted a statement made by CXZ in which he discussed the nature of his relationship with his second wife, however that statement did not disclose any admission by CXZ that he had behaved in a threatening manner as alleged in allegation 5. CXZ merely stated (at [46]):

87. [282]

    As in my consideration of the previous allegations, in evaluating whether the Tribunal undertook the requisite remaining step in evaluating risk, I have had regard to the paragraphs of the judgment relied upon by the Children’s Guardian and other passages of the Tribunal’s judgment which related to or concerned that issue.

88. [283]

    As to the paragraph relied upon by the Children’s Guardian as constituting the allegation, it is clear that the Children’s Guardian undertook no such evaluation. The wording the Tribunal adopts in considering allegation 5 and the structure of the subject paragraph are almost identical to allegation 4. In my view, for the same reasons discussed in relation to allegation 4, I do not find that the Tribunal has undertaken the third stage of the inquiry. The Tribunal did not expressly deal with the risk that CXZ poses to children in the light of the allegation, nor is an implication available to that effect based on the wording or structure of the subject paragraph. As in allegation 4, the Tribunal emphasised matters that go to the truth of the allegation, in favour of and to the exclusion of any assessment as to the risk that CXZ poses to children in light of the evidence relating to the allegation. This is demonstrative that the Tribunal’s analysis does not accord with the third stage of the inquiry.

89. [284]

    However, in the balance of the decision I do consider that the Tribunal undertook that task, for the reasons that follow:

    1. (1)

       First, at [57], the Tribunal, in assessing the risk of CXZ, gave “little weight” to FACS notifications (subsequent to 2001) made by CXZ’s second wife in the course of the family law proceedings. These notifications included the period that allegation 5 related to and therefore likely concerned the subject matter of allegation 5.

    2. (2)

       Secondly, at [71], the Tribunal gave “limited weight” to an affidavit sworn by CXZ’s sister in 2004, in which CXZ’s sister disclosed “real concerns about the [CXZ’s] children residing with [CXZ]”. These concerns may have encompassed allegation 5 as they presumably relate to CXZ’s contact with children, although that much is not made clear.

    3. (3)

       Thirdly, at [78], the Tribunal gave “limited weight” to an affidavit sworn in 2005 by a relative of the CXZ’s second wife describing “the applicant’s intimidatory behaviour” and, at [68], gave “some weight” to two affidavits of CXZ sworn in 2006 in which the CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law. As allegation 5 referred to “threatening behaviour”, it is likely that the Tribunal’s consideration of these affidavits formed part of the Tribunal’s assessment of risk having regard to allegation 5, although that much is not made explicitly clear.

    4. (4)

       Fourthly, at [67], the Tribunal gave “some weight” to an affidavit sworn by CXZ in 2005 describing CXZ’s relationship with his second wife and their children. It can be assumed that this affidavit covered the period and was relevant to allegation 5.

    5. (5)

       Further, the Tribunal placed an emphasis on factors more relevant to current risk. For example, the Tribunal gave weight to, and thus accepted, the report of Associate Professor Quadrio, which, inter alia, stated (see extract at [61] of CXZ No 1):

90. [285]

    Thus, notwithstanding allegations of threatening behaviour in relation to his contact with children in 2002-2003, in assessing the risk of CXZ, the Tribunal considered that more weight should be attributed to the fact that no such behaviour was currently exhibited by CXZ, who, it was accepted, was “seen to be a loving and caring father” (at [119]).

91. [286]

    I have found that contrary to the submissions advanced by the Children’s Guardian, that, when viewed as a whole, the Tribunal, by its decision, did grapple with the full panoply of issues relevant to the assessment of risk with respect to four of the five allegations identified by the Children’s Guardian.

92. [287]

    In one respect, the Children’s Guardian’s submissions do not grapple with this scenario as they were substantially predicated upon the foundation that, contrary to the conclusions reached in this judgment (save for allegation 1), the Tribunal had not fully assessed risk consistently with the relevant principles deriving from M v M as discussed in this judgment.

93. [288]

    However, the Children’s Guardian also contended that, irrespective of the particular conclusions made by the Court as to each allegation, it should find the Tribunal failed to consider the accumulated weight of the allegations.

94. [289]

    Thus, the Children’s Guardian’s submissions did raise the issue of accumulated weight even in the context now operating in consequence of the findings made in this judgment (that is the context of the findings as to the allegations raised in this judgment) and in any event require examination in consequence of the principles to which I have earlier referred in this judgment. Specifically, the Children’s Guardian submitted:

    1. (1)

       The Tribunal effectively proceeded one by one through the allegations (and other allegations raised against CXZ) and dismissed each one as being of little or limited weight.

    2. (2)

       Had the Tribunal reached a conclusion as to the risk associated with the allegations it would not have attributed little weight, and certainly it could not have attributed “no weight” to the allegations. It was contended that some of the allegations were supported by sworn testimony; a matter the Tribunal might have taken into account when weighing them

    3. (3)

       That is significant because the “task of the Tribunal was ‘to count’ the various matters to make an evaluation of their accumulated weight when assessing the risk posed by the applicant”.

95. [290]

    Reference should also be made to two further aspects of the submissions of the Children’s Guardian as to the conclusions appearing at the end of the Tribunal’s discussion. First, the Children’s Guardian submitted:

96. [291]

    Secondly, as outlined at [94] above, the Children’s Guardian also advanced a submission that, whilst there was a particular weighing of various other allegations (other than the allegations), the Tribunal’s decision did “not speak in terms of what risk was indicated by all of these matters together”. The Tribunal provided a series of examples which I will not repeat.

97. [292]

    CXZ did not specifically develop submissions on this issue.

98. [293]

    The Children’s Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluate the accumulated weight of the evidence of the allegations when assessing the risk posed by CXZ in its conclusions.

99. [294]

    It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

100. [295]

     This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

101. [296]

     In [152] and [153], the Tribunal referred to events having occurred up to 30 years ago but it is not made clear how that passage of time and how any risks arising from an earlier time have been the subject of the Tribunal’s deliberation. This is not to say the Tribunal did not place reliance on the evidence of the doctors as to risk diminishing over time and, as mentioned, their current estimate of risk, but that does not entail the Tribunal either specifically in relation to each allegation or in a cumulative sense discussing what risk was posed by CXZ based on their earlier findings (as I identified at various places in their decision earlier in this judgment).

102. [297]

     There is nothing in the Tribunal’s discussion arising under the requirement of s 30(1) of the Act which would alter this conclusion. Nor do I consider that it would be inferred that the Tribunal addressed the risk posed by allegations 2, 3 and 4 on a cumulative basis having regard to the manner in which the Tribunal approached the assessment of risk. Each allegation was assessed as a silo. It is true that it was necessary to travel outside the principal discussion of the allegation (as relied upon by the Children’s Guardian) in order to ascertain the Tribunal was discussing the ultimate or final issue of risk (described as the third stage) but the discussion, such as it was, concerned the particular allegation under consideration. In fact the fragmented nature of the discussion sits ill with the notion of some overarching discussion in the Tribunal’s conclusion drawing together the strands of its findings. I give some examples below.

103. [298]

     In finding that the Tribunal dealt with risk in the case of allegation 2, I referred to the Tribunal’s statement at [116] of its decision, where it gave no weight to the 2000 AVO in its assessment of risk and the particular weight that the Tribunal placed on the report of Dr Jones which concluded CXZ posed a low risk to the safety of children in spite of CXZ’s conceded history of domestic violence with his second wife and the AVOs in place over the course of their relationship. This discussion was located under the following headings:

     1. (1)

        “The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))”;

     2. (2)

        “Conclusion on section 30(1) matters”; and

     3. (3)

        “Psychiatric reports”.

104. [299]

     As to allegation 3, I noted the Tribunal’s reliance on the evidence pertaining to the allegation not being indicative of the risk that CXZ “currently” posed and the fact that the Tribunal placed “particular weight” on the findings of Dr Allnutt, who concluded that in spite of any evidence relating to allegation 3, CXZ was in the low range of risk. That discussion was also found under the same three headings listed in the preceding paragraph.

105. [300]

     As to allegation 4, I once again referred to the particular weight that the Tribunal had placed on the findings of Dr Allnutt and Dr Jones, who had both assessed CXZ to pose a low risk to children in the light of the evidence as to allegation 4. I also noted that the Tribunal had adequately assessed risk in accordance with the third stage of the inquiry for the same reasons as in allegation 3. This discussion was found under the same headings as in allegations 2 and 3 (see extracted above at [298]).

106. [301]

     It is unclear from the concluding remarks just what attention the Tribunal paid to allegations 1 and 5 (it seems to be limited to passing reference to “a series of notifications to FACS/DOCS since the applicant’s acquittal in 1997” (at [121]) and “a wealth of documentation from the 2002 and 2003 Family Law proceedings” including statements alleging violence by CXZ (at [118]). However, the direct connection that these statements had to the allegations was not properly set out by the Tribunal), but certainly no consideration as to how the risks associated with these allegations (noting the earlier finding that the Tribunal did not engage in the third stage consideration in dealing with allegation 1) may have contributed to the assessment of risk in a cumulative sense.

107. [302]

     It follows, in these circumstances, I consider Ground 1 to be made out.

Ground 2

1. [303]

   The Children’s Guardian accepted that its contentions as to the inadequacy of reasons mirrored its contentions under ground 1. In oral submissions the Children’s Guardian submitted:

2. [304]

   As I have found that the Tribunal did not apply M v M, it would appear to be unnecessary to resolve ground 2.

3. [305]

   The approach to the resolution of a ground of the kind is well settled. In this respect, it should be remembered that reasons be read as a whole, fairly and with a “beneficial construction”: Wu Shan Liang at 271 to 272. Reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 272.

4. [306]

   Without relying on the question, I observe, having regard to the foregoing findings and bearing in mind the approach adopted by the Children’s Guardian to this ground, it would appear that the first four of the six bases expressed in support of ground 2 may be rejected (see [18] and [100] above). However, the remaining two contentions of the ground seem to have greater force.

The Contention

1. [307]

   I reject the contention advanced by CXZ, essentially upon the contentions advanced by the Children’s Guardian. The issue sought to be ventilated by CXZ, in this respect, was not raised before the Tribunal. I agree the Tribunal cannot be said to have erred by not accepting an unmade contention that the evidence should have been received on a limited basis.

2. [308]

   Nor was there a sufficient basis advanced by CXZ as to why the Tribunal would necessarily have received the evidence on that basis in the absence of a request to have the subject deponent made available for cross-examination and objection raised as to the receipt of the evidence (attention should also be given to my earlier discussion of FZ and BRL).

Conclusion

1. [309]

   I have accepted the Children’s Guardian’s submissions as to the principles applicable to the determination the Tribunal was required to undertake, with respect to the application before it. Whilst I have rejected the Children’s Guardian’s contentions as to the application of those principles with respect to particular allegations, namely allegations 2, 3, 4 and 5 (but not 1), I have concluded that the Children’s Guardian’s contentions as to the failure of the Tribunal to properly assess the accumulated weight which should be attached to those risks was correct. Ground 1 should be accepted on that basis.

2. [310]

   It is, therefore, unnecessary to resolve ground 2. I have rejected the contention advanced by CXZ.

3. [311]

   It follows that the first three orders proposed by the Children’s Guardian should be made. The parties accepted that costs should follow the event.

DIRECTION

1. [312]

   The Children’s Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.